OPINION AND ORDER
This is a civil action for declaratory and injunctive relief brought pursuant to Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e(2), 2000e(3), by plaintiff Equal Employment Opportunity Commission against defendant TruGreen Limited Partnership. Plaintiff contends that defendant violated Title VII by subjecting one of its former employees, Pete Potae-zek, to a sexually hostile work environment. Jurisdiction is present. 28 U.S.C. §§ 1331 and 1343.
The case is before the court on defendant’s motion for summary judgment and on plaintiffs motion for partial summary judgment as to several affirmative defenses raised by defendant. I conclude that there is no triable issue of fact that Potac-zek was harassed because of his gender. For this reason, defendant is entitled to summary judgment and plaintiffs motion will be denied as moot.
On a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett,
UNDISPUTED FACTS
Plaintiff Equal Opportunity Employment Commission is an agency of the United States charged with the administration, interpretation and enforcement of Title VII of the Civil Rights Act of 1964. At all times relevant to this lawsuit, defendant TruGreen Limited Partnership has done business in Madison, Wisconsin.
In January 1993, Peter Potaczek began working as a sales representative at defendant’s Madison branch. On February 16, 1995, Potaczek’s employment with defendant ended. During the period of Potac-zek’s employment, Jeffrey Schaefer served as the marketing manager for the Madison branch and James Jasensky was the branch manager. On September 27, 1993, Schaefer suspended Potaczek for two days without pay after Potaczek admitted making loud noises in the ear of another sales representative as the representative spoke with a customer over the telephone. As a result, the customer declined to do business with defendant any longer. According to the report prepared by Schaefer, “Pete [Potaczek] then called [the] customer back and lied to them about their [sic] being a big ‘shin dig’ and Steve not being aware of it.” In the report, Schaefer noted that Potaczek had engaged in similar “high jinx” including “making a fire on company property and setting [off] a ‘stink bomb’ ...”
After Schaefer had warned Potaczek not to write “100% weed control” on estimates provided to customers, Potaczek wrote “98% weed control.” On April 12, 1994, Potaczek received a written warning for this conduct. On June 15, 1994, Schaefer issued a second written warning to Potac-zek for leaving work early.
On September 9, 1994, Schaefer suspended Potaczek for three days without pay for insubordination. Schaefer had told Potaczek to generate $1,000 worth of sales. When Potaczek failed to reach this goal, he refused to work longer in order to make up the difference. On January 20, 1995, Schaefer suspended Potaczek for three days without pay for falsifying a sales report.
Potaczek is a born-again Christian. He is offended by pictures of nude women and by sexual banter and profanity. Schaefer had some knowledge of Potaczek’s religious convictions. Both Schaefer and Po-taczek had desks in the sales room at defendant’s Madison branch. Jasensky’s office was located next to the sales room. Sometime in 1993, an employee found an adult magazine and turned it over to Schaefer, who put it in a desk drawer where it remained for approximately the next month until Schaefer threw it away. Sometime in 1994, Schaefer brought a picture of a topless woman to work. He had found the picture at a gas station. Schae-fer showed the picture to a few of his coworkers, asking at least one employee whether he thought the woman’s breasts were “real” or “fake.” On another occasion, Schaefer wrote “Pete Sucks” on a piece of paper that he knew Potaczek would see. Potaczek complained about Schaefer’s conduct to Jasensky. During the period that plaintiff worked for defendant, Schaefer verbally reprimanded employees for making crude sexual remarks between five to ten times. He let employees engage in sexual banter so long as he did not consider it disruptive.
On the morning of February 16, 1995, one of Potaczek’s coworkers, Mike Schla-chter, lost consciousness and hit his face against the ground. As Jasensky attempted to assist Schlachter, Potaczek said, “You really did a number on your face, Mike.” Upon hearing this, Jasensky told Potaczek to “shut the fuck up” because he was not helping matters. When Jasensky
On March 28, 1995, Potaczek filed a charge of religious discrimination against defendant with plaintiff. On August 3, 1995, plaintiff dismissed the charge. On October 24, 1995, Potaczek filed a second charge against defendant, contending that he had been sexually harassed and constructively discharged. Plaintiff found reasonable cause that Potaczek had been sexually harassed.
DISPUTED FACTS
Potaczek contends that Schaefer directed a variety of sexually lewd remarks and conduct at him on a daily basis. Schaefer denies flatly that he ever used sexually explicit language or engaged in behavior with sexual overtones while at work, whether in the presence of Potaczek or any other employee.
Potaczek’s version of events runs as follows. The objectionable conduct engaged in by Schaefer began about four to six months into Potaczek’s employment with defendant and manifested itself ’in four different ways: verbal remarks; written remarks; distribution of magazines featuring naked women; comments and conduct directed at a family picture kept on Potac-zek’s desk. Most of the offensive comments allegedly made by Schaefer focused on Potaczek’s wife, Lori. For example, Schaefer allegedly said: “I bet your wife’s got a nice tight pussy.” On days when Potaczek appeared cheerful, Schaefer would say, “Boy, you must have gotten a good blow job from your wife last night,” or some variation on that theme. Schaefer told Potaczek that he wanted to ejaculate on Lori. Schaefer inquired about parts of her anatomy, asking whether Lori had “big boobs or little boobs or big nipples or little nipples.” Questions about the skill with which Lori performed fellatio and other sexual acts rounded off Schaefer’s repartée. In addition to making these comments, Schaefer- allegedly wrote “anal rape” and “clit weed” on Potaczek’s work materials. When Potaczek asked a customer over the telephone whether the customer knew Potaczek’s mother, Schaefer allegedly scribbled “fuck mom” on a piece of paper near Potaczek. On a regular basis, Schaefer allegedly brought adult magazines to work and showed pictures from these magazines to everyone, including Potaczek. Schaefer enjoyed commenting on pictures featuring with women with large breasts. Jaskensky knew that Schaefer brought these magazines to work and occasionally admired them himself. The last type of behavior allegedly engaged in by Schaefer concerns the family photograph that rested on Potaczek’s desk. According to Potaczek, Schaefer would grope, lick and kiss Lori’s breasts and crotch, sometimes rubbing the picture against his body. Potaczek allegedly filmed one of these episodes but can no longer find the incriminating videotape.
In stark contrast to this account, Schae-fer admits that on one occasion he “tapped” Potaczek’s family picture in the vicinity of Lori’s breasts “to be funny.” Schaefer maintains that none of the other allegations made by Potaczek are true.
OPINION
Recently, the Supreme Court held that workplace harassment can violate Title VII “when the harasser and the harassed employee are of the same sex.”
Oncale v. Sundowner Offshore Services, Inc.,
To dispel the fear that “recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace,” the Court stressed that the statute prohibits “
‘dis-criminatfion] ...
because of ... sex,’ ”
id.
at 1002 (quoting 42 U.S.C. § 2000e 2(a)(1)), not “all verbal or physical harassment in the workplace.”
Id.
The Court described three ways in which this showing could be made in a same-sex harassment lawsuit. First, the plaintiff could prove that sexual desire motivated the harasser. In this regard, it is important to remember that the term “sex” from Title VII is a reference to the victim’s gender, not to carnal matters. Courts should not assign disposi-tive weight to certain conduct simply because it has sexual overtones.
See id.
(“We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.”) This qualification notwithstanding, an inference of discrimination can be easy to draw when a male employee propositions a female co-worker.
See id.
In these situations, “it is reasonable to assume that the proposals would not have been made to someone of the same sex.”
Id.
Credible evidence indicating that the harasser is homosexual would justify extending this rationale to the arena of same-sex harassment.
See id.
Second, an inference of discrimination could be drawn “if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.”
Id.
Finally, the victim of same-sex harassment could prove discrimination by relying on “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.”
Id.
These three examples are illustrative, not exhaustive.
See Shepherd v. Slater Steels Corporation,
Like the Supreme Court, the Seventh Circuit has emphasized the importance of proving that discriminatory conduct is motivated by the victim’s gender.
See, e.g., Galloway v. General Motors Service Parts Operations,
The court of appeals has explored the difficulties of determining when discrimination is “because of’ the victim’s gender in the context of same-sex harassment.
See, e.g., Shepherd,
Perhaps anticipating such an outcome, the court of appeals articulated an alternative basis of liability, relying on
Price Waterhouse v. Hopkins,
The allegations in
Johnson v. Hondo,
Although explicit sexual content or vulgarity may often take a factfinder a long way toward concluding that harassing comments were in fact based on gender ... this need not necessarily be the case. Most unfortunately, expressions such as “fuck me,” “kiss my ass,” and “suck my dick,” are commonplace in certain circles, and more often than not, when these expressions are used (particularly when uttered by men speaking to other men), their use has no connection whatsoever with the sexual acts to which they make reference — even when they are accompanied, as they sometimes were here, with a crotch-grabbing gesture. Ordinarily, they are simply expressions of animosity or juvenile provocation, and there is no basis in this record to conclude that Hicks’ usage was any different.
Id. The behavior engaged in by Hicks amounted to “nothing other than vulgar provocations having no causal relationship to Johnson’s gender as a male.” Id. at 413. In contrast to the harassment aimed at the plaintiff in Doe, Hicks did not subject Johnson to an assortment of verbal and physical attacks, express hostility to the way in which Johnson exhibited his sexuality, target Johnson exclusively or make any reference to Johnson’s gender. See id. at 413-14.
The harassing conduct chronicled in
Shepherd,
On the basis of these allegations, the Seventh Circuit held that a reasonable fact finder could decide that “Jemison had harassed Shepherd because Shepherd is a man.” Id. at 1000. Before reaching this conclusion, the court of appeals discussed the significance of Oncale, explaining that it “demonstrates that there is no singular means of establishing the discriminatory aspect of sexual harassment.” Id. at 1000. Although the Supreme Court articulated three ways in which a plaintiff could make this showing, these examples are instructive, not exhaustive. See id. Turning to the merits, the Seventh Circuit found enough evidence to imply that “Jemison’s harassment of Shepherd was borne of sexual attraction.” Id. Under another reasonable interpretation of the facts, Jemison harassed Shepherd “simply because [Jemi-son] was exceedingly crude and/or because he knew that this type of sexually-charged conduct would make Shepherd uncomfortable.” Id. at 1001. As in any case, when the undisputed facts are capable of supporting two competing inferences, such conflicts must be resolved “by the factfin-der after trial, not [by] the court on summary judgment.” Id.
Shepherd’s
most valuable contribution is not the way in which the court of appeals interpreted or applied
Oncale
but how the court distinguished the facts of
Shepherd
from
Johnson
in the wake of
Oncale.
The Seventh Circuit did not suggest that
On-cale
has diminished the precedential value
that courts and juries do not mistake ordinary socializing in the workplace— such as male-on-male horseplay or inter-sexual flirtation' — for discriminatory “conditions of employment.” ... In same-sex (as in all) harassment cases, the inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.... The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing and roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiffs position would find severely hostile and pervasive.
Oncale,
This ease illustrates effectively why the “because of’ requirement plays such an important role in Title VII claims. To survive defendant’s motion for summary judgment, plaintiff must present evidence of a causal relationship between Potaczek’s gender and Schaefer’s alleged conduct. Otherwise, Potaczek’s checkered employment record with defendant, the other charge of discrimination that he filed with plaintiff and the allegation that Schaefer engaged in sexual banter and showed nude pictures to everyone in the office suggest possible explanations for Schaefer’s behavior that have nothing to do with Potaczek’s gender: Schaefer did not care for born-again Christians; Schaefer disliked Potac-zek personally or professionally or both because of the number of times that he had to cite Potaczek for workplace misconduct; or Schaefer is generally a crude individual. Indeed, one of plaintiffs own witnesses has ascribed such a motive to Schaefer’s behavior, explaining the situation as follows: “Pete was an easy going, fun person who often cheered up the work environment with his good humor.... Jeff continued to say sexual things to Pete [because] ... Jeff didn’t appreciate the fun and enjoyment Pete brought to the office. I think Jeffs way of punishing Pete was to deliberately not respect Pete’s wishes about sexual remarks.” Aff. of Michael Schlacter (Exh. B to Aff. of Henry Hamilton, dkt. # 82). One could infer reasonably that “fun and enjoyment” is a reference to the stink bomb and telephone incidents for which Potaczek received a two-day suspension. The description of the salesroom provided by Schlacter also lends credence to defendant’s assertion that Schaefer’s behavior amounted to nothing more than run-of-the-mill horseplay and vulgarity: “In our work setting, it was not unusual for employees and managers to curse and swear as well as make remarks with sexual content. For example, it was not unusual for us to remark about our sexual activity with our wives or partners.” Id.
Plaintiff does not develop this gender stereotype theory fully but the argument appears to run as follows: after Potaczek told Schaefer to stop displaying pictures of naked women and making obscene comments about Potaczek’s wife, Schaefer became even more determined to engage in this behavior out of contempt at the notion that a grown, heterosexual male, like Po-taczek did not have a healthy appreciation for adult magazines and sexual banter. In other words, in the language of Price Wa-terhouse and Doe, Schaefer treated Potac-zek adversely because Potaczek did not exhibit his masculinity in a way that met Schaefer’s conception of how a man should behave. Although plaintiff could succeed on such a theory, it cannot do so without the facts to support the theory. It has failed to come forward with factual evidence sufficient to create a genuine dispute that Schaefer treated Potaczek adversely because Potaczek’s conduct did not conform to stereotypical gender roles.
The lack of facts stems in part from plaintiffs failure to adhere to this court’s summary judgment procedures. Plaintiff has proposed several facts that are not supported by citations to evidence in the record. In other proposed facts, it has mischaracterized the evidence cited in support of these facts. To make matters worse, many of the statements that do not conform with the court’s rules have some connection to plaintiff s'gender stereotype theory. For example, there is no citation accompanying the following proposed fact: “Potaczek told Schaefer that he did not welcome [sexual] comments in his presence.” Pl.’s Prop. Findings of Fact, dkt. # 68, at ¶ 84. In its brief, plaintiff asserts that, despite Potaczek’s protests, Schaefer made “derogatory remarks about ... female applicants” and asked “Potaczek whether he could have sex with Mrs. Po-taczek.” Dkt. #67 at 3. Again, these statements are not linked to proposed facts. As stated in section five, paragraph E of this court’s standing order on procedures to be followed on motions for summary judgment:
The court does not consider that it is under any obligation to search the record for factual matters that might support either the grant or the denial of the motion. It is the duty of the parties to bring to the court’s attention by specific reference to the record ... all factual and legal matters material to the resolution of the issues in dispute.
Further, the order states that a “response shall refer to the pleadings, deposition transcripts, answers to interrogatories, admissions on file, or affidavits” when asserting that a genuine dispute exists.
Of even greater concern are the liberties that plaintiff has taken with deposition testimony. Citing Schaefer’s deposition, dkt. # 91, plaintiff proposes as a fact that “Schaefer assumed that his pornographic materials would not be offensive to Potac-
ORDER
IT IS ORDERED that:
1. The motion of defendant TruGreen Limited Partnership for summary judgment is GRANTED; and
2. Plaintiff Equal Employment Opportunity Commission’s motion for partial summary judgment is DENIED as moot.
3. The clerk of the court is directed to enter judgment in favor of defendant and close this case.